In defending Bush’s warrantless-search program, the White House has come up with a variety of angles, but one principal legal rationale: the Foreign Intelligence Surveillance Act (FISA) has a high, “probable cause” standard for obtaining a warrant. So high, in fact, that FISA became overly restrictive — intelligence officials had a specific target in mind, and wanted to conduct surveillance, but not quite enough evidence to meet the “probable cause” threshold.
As the argument goes, FISA’s inadequacy made warrantless searches a necessity. The administration would still use FISA, but for certain suspects for whom surveillance is necessary, the administration needs to go around FISA’s restrictions. It’s not our fault, the administration argues, it’s just the flaw inherent in an out-of-date law.
Up until recently, critics have noted that this approach is unpersuasive because the administration could have asked Congress to expand and/or alter FISA to meet post-9/11 needs. But this week, there’s a new flaw in the administration’s argument: Congress offered to change FISA after 9/11 — and the administration said not to.
The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.
The proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a “reasonable suspicion” they were connected to terrorism — a lower standard than the “probable cause” requirement in the statute that governs the warrants. […]
During Senate debate over DeWine’s amendment in July 2002, James A. Baker, the Justice Department’s counsel for intelligence policy, said in a statement that the Bush administration did not support the proposal “because the proposed change raises both significant legal and practical issues.”
Baker said it was “not clear cut” whether the proposal would “pass constitutional muster,” and “we could potentially put at risk ongoing investigations and prosecutions” if the amendment was later struck down by the courts. He also said Justice had been using FISA aggressively and played down the notion that the probable cause standard was too high.
There’s additional coverage of this development in the WaPo, LA Times, and Knight Ridder.
It’s an extremely significant development. It’s effectively the end of the administration’s defense.
It’s entirely contradictory that the standard the administration rejects as overly burdensome now is the same standard the administration wanted to keep in place in 2002. But it also completely undermines the notion, argued by the administration repeatedly for the last month, that Congress implicitly authorized the president to conduct warrantless searches.
The administration argued against DeWine’s proposed changes to FISA — and Congress followed suit, voting down DeWine’s amendment in committee. In other words, lawmakers had an opportunity to expand the administration’s power, but specifically decided not to. When the White House insists, as it does often, that Bush’s warrantless-search authority derives in party from Congress, it’s demonstrably false, not just because of the wording and intent of the 9/11 resolution, but also because of what happened with the DeWine proposal.
Which leaves us at an interesting point. The president circumvented FISA because he wanted to and he claimed legal powers that the legislative branch specifically said he does not have. This isn’t a gray area — Bush knowingly and willfully took a step that Congress said he could not take.
There’s one other angle to this story that warrants attention: it came from a blogger. Glenn Greenwald, a New York lawyer who blogs at Unclaimed Territory, made the DeWine discovery earlier this week, which finally led to several major dailies to run with the story today. Glenn obviously deserves world-class kudos for his extraordinary find.